James Vann v. A & E Custom Manufacturing Technologies

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-097297

Employee: James Vann

Employer: A \& E Custom Manufacturing Technologies (Settled)

Insurer: Fidelity \& Guaranty Insurance Co. c/o Frank Gates USA (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated September 28, 2010. The award and decision of Administrative Law Judge Carl Mueller, issued September 28, 2010, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $8^{\text {th }}$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: A\&E Custom Manufacturing Technologies (Settled)

Additional Party: Treasurer of the State of Missouri as the Guardian of the Second Injury Fund

Insurer: Fidelity \& Guaranty Insurance Co. c/o Frank Gates USA (Settled)

Hearing Date: August 19, 2010 Checked by: RCM/rm

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: on or about February 01, 2007
5. State location where accident occurred or occupational disease was contracted: Riverside, Jackson County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was attempting to close an overhead door by pulling on a strap when he injured his left shoulder.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left shoulder
14. Nature and extent of any permanent disability: twenty three and seven-tenths percent (23.7\%) - left shoulder at the 232-week level
15. Compensation paid to-date for temporary disability: $\ 10,449.54
16. Value necessary medical aid paid to date by employer/insurer? $\ 31,265.66
17. Value necessary medical aid not furnished by employer/insurer? N/A
18. Employee's average weekly wages: $\ 522.44
19. Weekly compensation rate: $\ 348.29
20. Method wages computation: Stipulation

1. Amount of compensation payable: N/A
2. Second Injury Fund liability:

Permanent total disability benefits from Second Injury Fund: $\qquad$ Yes

-- weekly differential (\0) payable by SIF for 55 weeks beginning June 01, 2009 \qquad$ \0

-- and, thereafter \ 348.29 per week, for Claimant's lifetime. $\qquad Indeterminate

TOTAL: \qquad Indeterminate

1. Future requirements awarded: Benefits paid at \ 348.29 per week for duration of Employee's life.

Said payments to begin as of date of this award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a twenty-five percent (25\%) lien in favor of David A. Slocum, Attorney, for reasonable and necessary attorney's fees pursuant to Mo.Rev.Stat. §287.260.1.

Employee: James Vann

Injury No: 07-097297

Dependents: N/A

Employer: A\&E Custom Manufacturing Technologies (Settled)

Additional Party: Treasurer of the State of Missouri as the Guardian of the Second Injury Fund

Insurer: Fidelity \& Guaranty Insurance Co. c/o Frank Gates USA (Settled)

On August 19, 2010, the Employee and the Second Injury Fund appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The Employee, Mr. James Vann, appeared in person and with counsel, David A. Slocum. The Second Injury Fund appeared by and through its counsel, Assistant Attorney General, Andy Dickson. The primary issues the parties requested the Division to determine were: (1) whether or not Mr. Vann suffered any disability and, if so, the nature and extent of his disability; and (2) whether the Second Injury Fund is liable to Mr. Vann for any disability compensation. For the reasons noted below, I find that Mr. Vann's work accident of February 01, 2007 caused the disabilities that he complained of, and that the disability attributable to the February 01, 2007 work accident is equal to twenty three and seven-tenths percent ( 23.7 % ) to the left shoulder. I further find that Mr. Vann is permanently and totally disabled following the February 01, 2007 accident as a result of a combination of Mr. Vann's preexisting disabilities and the residuals attributable to the February 01,2007 work injury.

The parties stipulated that:

1. On or about February 01, 2007 ("the injury date"), A\&E Custom Manufacturing Technologies was an employer operating subject to Missouri's Workers' Compensation law, and that A\&E Custom Manufacturing Technologies' liability under the Workers' Compensation Act was fully insured by Fidelity \& Guaranty Insurance Co. c/o Frank Gates USA:
2. Mr. Vann was its employee working subject to the law in Riverside, Jackson County, Missouri;
3. Mr. Vann sustained an accident arising out of and in the course and scope his employment on February 01, 2007;
4. Mr. Vann notified Custom Manufacturing Technologies of his injury and filed his claim within the time allowed by law;
5. Custom Manufacturing Technologies provided Mr. Vann with medical care equal to $\ 31,265.66;
6. Mr. Vann's average weekly wage was $\ 522.44 rendering compensation rates of $\ 348.29 for temporary total, permanent total and permanent partial disability; and

The parties requested the Division to determine:

1. Whether or not Mr. Vann suffered any disability and, if so, the nature and extent of his disability?
2. Whether the Second Injury Fund is liable to Mr. Vann for any disability compensation?

Mr. Vann testified on his own behalf and presented the following exhibits, all of which were admitted into evidence:

Exhibit A - Deposition, P. Brent Koprivica MD, August 02, 2010, with exhibits attached.

Exhibit B - Deposition, Michael Dreiling, July 19, 2010

Exhibit C - Transcript of KS Settlement hearing, February 20, 2009

Exhibit D - List of Current left shoulder complaints

Exhibit E - List of physical complaints to right and left knees before February 01, 2007

Exhibit F - List of physical complaints to right wrist before February 01, 2007

Exhibit G - List of physical complaints to the right shoulder before February 01, 2007

Exhibit H - List of physical complaints to Low Back before February 1, 2007

Exhibit I - A \& E Termination letter dated September 21, 2007

The Second Injury Fund did not present any additional evidence.

Based on the above exhibits and the testimony of Mr. Vann, I make the following findings:

Mr. Vann is a, 63-year old gentleman. Mr. Vann graduated high school in 1964 from Boy's Town in the State of Nebraska. Other than a training course that Mr. Vann completed through Trans-World Airlines in the early 1990's related to engine mechanics, Mr. Vann has had no vocational training and has no typing or computer skills.

Mr. Vann has primarily worked in labor type jobs. Over the last 15 years Mr. Vann's jobs have included: fabricator, asbestos removal laborer, railroad worker, animal control officer, auto-parts stocker, parts inspector, airplane cleaner, dump truck driver, maintenance mechanic and delivery driver.

At the time of the accident, Mr. Vann was working at Custom Manufacturing Technologies. He began at Custom Manufacturing Technologies as a delivery driver in 2006 after working similar jobs at FedEx Home Delivery, Straight Shot Express and J.W.I Supply.

On February 01, 2007, Mr. Vann was trying to close the overhead door of his trailer by pulling on a strap with his left arm when he felt a pop and immediate pain in his shoulder. Of note, Mr. Vann testified that although he is right hand dominant, he was pulling on the strap with his left arm because of permanent limitations with his right shoulder that are the outgrowth of an injury that he sustained in 2002.

After his injury, Mr. Vann notified his employer and was directed to Occupational Health Services for treatment on February 02, 2007. The note from OHS records that on February 01, 2007 Mr. Vann was "standing at the rear of his truck and lifting up over his head with his left arm to close the sliding rear drawer (sic) of his truck. The door was stuck and he had to yank on the strap. This caused some immediate darting pain in the front of his left shoulder...He has never had trouble with his shoulder in the past." This is consistent with Mr. Vann's testimony and Mr. Vann testified that the note was an accurate description of how the work accident occurred.

Following the initial treatment that Mr. Vann received at OHS he was referred for physical therapy. Unfortunately, the physical therapy was unsuccessful in permanently eliminating Mr. Vann's left shoulder complaints.

Because of his ongoing complaints Mr. Vann was referred to the Diagnostic Radiology institute of Kansas City for an MRI of his left shoulder on February 23, 2007. The impressions of the radiologist were "1. Rotator cuff tear, 2. Acromioclavicular degenerative change, 3. Degenerative change in the humeral head with subchondral cyst formation, 4. Small shoulder joint effusion."

Following the results of the MRI Mr. Vann was referred to Dr. Prem Parmar who performed a "left arthroscopic rotator cuff repair, subacromial decompression, distal clavicle excision and glenohumeral debridement of type 1 SLAP tear and posterior labral tear" on May 01, 2007.

Unfortunately, the surgery performed on May 01, 2007 was unsuccessful in resolving Mr. Vann's left shoulder complaints. As a result, Mr. Vann was scheduled for an MRI left shoulder arthrogram on September 12, 2007. According to the radiologist's report, the MRI arthrogram revealed postoperative and degenerative changes as well as "...thickening, increased signal and irregularity of the distal supraspinatus tendon at its insertion consistent with tendonopathy and/or partial tear. Fluid is seen in the subacromial/subdeltoid bursa...which may be postoperative in nature versus tiny pinhole full thickness tear of the supraspinatus tendon."

Due to the abnormalities noted on the September 12, 2007 MRI arthrogram, Mr. Vann underwent a second left shoulder surgery on November 27, 2007. On that date, Dr. Parmar performed a "left shoulder arthroscopic rotator cuff repair and glenohumeral debridement" for a "left shoulder partial-thickness rotator cuff tear of the supraspinatuspartial articular supraspinatus tendon avulsion (PASTA) lesion."

Mr. Vann testified that the second left shoulder surgery performed by Dr. Parmar was not successful in completely resolving his left shoulder complaints. However, despite Mr. Vann's ongoing left shoulder complaints he was relea